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Colorado Supreme Court: Prosecution Prohibited From Arguing Defendant’s Failure to Retreat Showed Lack of Fear, Undermining Claim of Self-Defense

Sheila Renee Monroe got into an argument with a man on a city bus. Monroe showed the man she had a pocket knife. The man said he was going to call police. The man claimed that after he removed his phone and was dialing, Monroe stabbed him in the neck. A witness testified that the man had his phone in his hand and “was opening his jacket” when Monroe stabbed him. Monroe was charged with first-degree assault and attempted first-degree murder.

At trial, Monroe claimed that she acted in self-defense when the victim reached into his pocket.

During closing argument, the prosecutor said Monroe “didn’t have any duty to retreat, but she does have a clear line of retreat, if she’s actually scared for her safety.” Defense counsel objected, arguing that this imposed a duty to retreat. The trial court overruled the objection.

Calling the jury’s attention to the self-defense instruction that specified Monroe didn’t have a duty to retreat, the court directed the jury to only consider Monroe’s failure to retreat as relevant to “whether or not she reasonably believed there was an imminent use of force.” The prosecutor continued, saying, “she did not have any duty to retreat but could have backed away, if she wanted to, if she was actually afraid.” Then three additional times during rebuttal closing, the prosecutor argued that Monroe’s failure to remove herself from the situation contradicted her claim that she was in fear of being hurt; that the video showed she had a clear escape route up the bus aisle that she did not take; and that she said during a police interview that if she was scared she would have run away but she didn’t run away because she wasn’t acting in self-defense.

Each time, defense counsel objected. And each time, the trial court overruled the objection, directing the jury’s attention to the instruction on self-defense. But apparently, the latter two times, the trial court did not instruct the jury to only consider the argument for the purpose of whether Monroe believed there was an imminent threat of physical violence. The jury convicted Monroe, and she appealed.

The Court of Appeals reversed, holding that the prosecutor’s last two arguments imposed upon Monroe a duty to retreat, which the trial court failed to correct. The Court of Appeals declined to decide if the trial court erred in permitting the prosecutor to make its arguments. The Colorado Supreme Court granted the People’s petition for certiorari review.

The Court observed “[i]t is improper for counsel to misstate the law or ‘misinterpret for the jury how the law should be applied to the facts’ during closing argument. People v. Sepeda, 581 P.2d 723 (Colo. 1978). In Colorado, a person may use physical force against another “in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.” Colorado Revised Statutes § 18-1-704(1) (2019).

And in Colorado, only the initial aggressor is required to retreat before using force in self-defense. Cassels v. People, 92 P.3d 951 (Colo. 2004). A non-aggressor may assert self-defense without (1) considering whether a reasonable person would retreat to safety instead of resorting to physical force or (2) actually retreating from an attack even if she could safely do so. People v. Toler, 9 P.3d 341 (Colo. 2000). Therefore, a prosecutor may not argue that a defendant is barred from claiming self-defense unless she first retreats from an encounter. Brown v. United States, 256 U.S. 335 (1921).

The Court rejected the People’s contention that there is a recognized distinction between arguments that improperly imposed a duty to retreat and arguments regarding a defendant’s failure to retreat that undermined the reasonableness of a defendant’s use of force. The Court opined that allowing the prosecution to argue about a defendant’s failure to retreat “would cripple the no-duty-to-retreat rule.” It would condition the use of defensive force on flight, so only defendants who had no ability to retreat could claim self-defense. Commonwealth v. Hasch, 421 S.W.3d 349 (Ky. 2013).

Further, that line of argument is based on a faulty premise. Not all persons facing a threat will flee even when an opportunity exists. Some will freeze, and some will fight. Karin Roelofs, Freeze for Action: Neurological Mechanisms in Animal and Human Freezing, 372 Phil. Transactions Royal Soc’y B 1, 1 (2017).

Finally, such arguments may confuse a jury. In the instant case, the prosecutor and the trial court struggled to distinguish between arguments that imposed an outright duty to retreat and those that don’t. This confusion and possibility of misleading the jury weighed against its admission. Colorado Rules of Evidence, Rule 403.

The Court concluded that it was error for the trial court to permit the People to make the five arguments to the jury regarding Monroe’s failure to retreat.

Related legal case

People v. Monroe

 

 

The Habeas Citebook: Prosecutorial Misconduct Side
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